| People v McKenzie |
| 2017 NY Slip Op 01890 [148 AD3d 936] |
| March 15, 2017 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Linford McKenzie, Appellant. |
Randall D. Unger, Bayside, NY, for appellant.
Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, JohnnetteTraill, Christine DiSalvo, and Tina Gallo of counsel), for respondent.
Appeals by the defendant from (1) a judgment of the Supreme Court, Queens County (Kohm,J.), rendered March 31, 2015, convicting him of criminal possession of a weapon in the seconddegree and criminal possession of a weapon in the third degree, upon a jury verdict, andimposing sentence, and (2) a resentence of the same court dated April 7, 2015. The appeals bringup for review the denial, after a hearing (Aloise, J.), of that branch of the defendant's omnibusmotion which was to suppress physical evidence.
Ordered that the judgment and the resentence are affirmed.
At a hearing on the defendant's motion to suppress physical evidence, Police Officer AlfredLawrence testified that on the night of July 7, 2010, he responded to a radio call regarding anofficer in need of assistance in apprehending a suspect at a residence in Queens. After he andseveral fellow officers searched a garage at the premises and recovered a gun from the garage,Officer Lawrence walked to the front of the residence and observed a vehicle parked at the curb,with the defendant seated in the driver's seat. As the suspect was still at large, Officer Lawrenceapproached the passenger side of the vehicle and shined his flashlight into the car, observing aclear plastic bag containing what appeared to be marijuana in the center console, and the butt of ahandgun protruding from a shoulder bag on the front passenger seat. The defendant was removedfrom the car and placed under arrest.
The defendant's counsel sought to cross-examine Officer Lawrence with regard to thediscovery of the gun in the garage, and the arrest of several other suspects in connectiontherewith, in an effort to challenge the officer's credibility. The prosecutor objected to this line ofquestioning, and the hearing court sustained the objections on the ground that the questioningconcerned matters collateral to the issue to be decided at the hearing. The defense then presentedtestimony from three acquaintances of the defendant who had been present at the scene. Each ofthem stated that the defendant was detained with other suspects on the front lawn of theresidence, and that the police only approached the subject vehicle and recovered items from itafter they had already searched the defendant's person and recovered a key fob for the car fromhim. At the conclusion of the hearing, the court credited the testimony of Officer Lawrence anddenied that [*2]branch of the defendant's omnibus motion whichwas to suppress physical evidence.
Contrary to the defendant's contention, the hearing court did not improperly curtail thecross-examination of Officer Lawrence. The proposed cross-examination was clearly collateral tothe subject of the hearing, as defense counsel sought to explore the discovery of a gun in thegarage, the arrests of other suspects in connection with the recovery of that firearm, and theultimate disposition of those other charges. Since these matters were not relevant to the arrest ofthe defendant, and since the hearing court otherwise provided defense counsel with wide latitudeto properly challenge the credibility of the officer's account of the defendant's arrest and therecovery of contraband from the vehicle, the court did not improvidently exercise its broaddiscretion in refusing to permit cross-examination on issues that were not material to the hearinginquiry (see People v Cruz, 131AD3d 706, 707 [2015]; People vSwain, 109 AD3d 1090, 1091 [2013]; People v Bryant, 73 AD3d 1442, 1443 [2010]; Matter ofSheldon G., 234 AD2d 459, 459-460 [1996]; People v Presha, 190 AD2d 1005[1993]).
Similarly unavailing is the defendant's contention that Officer Lawrence's hearing testimonywas patently incredible. The determinations of a hearing court as to matters of credibility areaccorded great deference on appeal and will not be disturbed unless clearly unsupported by therecord (see People v Rivera, 60AD3d 788, 789 [2009], mod 15 NY3d 207 [2010]; People v Parker, 306AD2d 543, 543 [2003]; People v Williams, 303 AD2d 608, 608 [2003]). Here, theofficer's testimony was neither manifestly untrue nor patently tailored to overcome constitutionalobjections, and there is no basis in the record upon which to disturb the hearing court'sdetermination (see People v Page,137 AD3d 817, 817 [2016]; Peoplev Boyd, 136 AD3d 935, 936 [2016]; People v Cruz, 131 AD3d at 706).
The defendant's further contention that the evidence was legally insufficient to support hisconvictions is unpreserved for appellate review (see People v Hawkins, 11 NY3d 484, 491-492 [2008]; People vGray, 86 NY2d 10, 19 [1995]). In any event, viewing the evidence in the light most favorableto the prosecution (see People v Contes, 60 NY2d 620, 621 [1983]), we find that it waslegally sufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover, infulfilling our responsibility to conduct an independent review of the weight of the evidence (see People v Danielson, 9 NY3d342 [2007]), we nevertheless accord great deference to the jury's opportunity to view thewitnesses, hear the testimony, and observe demeanor (see People v Mateo, 2 NY3d 383,420 [2004]; People v Bleakley, 69 NY2d 490, 495 [1987]). Upon reviewing the recordhere, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633[2006]).
The defendant's remaining contention is without merit. Mastro, J.P., Chambers, Maltese andDuffy, JJ., concur.